An independent federal agency, the Advisory Council on Historic Preservation (ACHP) promotes the preservation,
enhancement, and productive use of our nation’s historic resources and advises the President and Congress on
national historic preservation policy. It also provides a forum for influencing federal activities, programs, and
policies that affect historic properties.
Advisory Council on Historic Preservation
401 F Street, NW, Suite 308
Washington, D.C. 20001
Consultation with Indian Tribes in the Section 106 Review Process:
A Handbook
Table of Contents
I. About this Handbook
II. Federal Government Consultation with Indian Tribes
III. General Information about Consultation with Indian Tribes in the Section 106 Process
IV. General Questions and Answers
V. Consultation with Indian Tribes for Proposed Undertakings Off—and On—Tribal Lands
VI. Consultation Tools and Strategies
VII. Principles and Tips for Successful Consultation
About this Handbook
Since the first publication of this handbook in 2008, there have been a number of policy developments
that bear on federal agency consultation with Indian tribes. Among these developments is the adoption of
tribal consultation policies by every major U.S. department and the United States’ support for the United
Nations Declaration on the Rights of Indigenous Peoples. The ACHP has also issued additional guidance
about specific issues regarding tribal consultation in the Section 106 process and, as a member of
interagency working groups, on broader tribal preservation topics. These new developments will be
referenced throughout the guidance.
The focus of this handbook is tribal consultation in the Section 106 review process. It is intended to be a
reference for federal agency staff responsible for compliance with Section 106. Tribal Historic
Preservation Officers (THPOs) and tribal cultural resource managers may also find this handbook helpful.
Readers should have a basic understanding of the Section 106 review process as this document focuses
only on Section 106 tribal consultation. It is not a source for understanding the full breadth of Section 106
responsibilities, such as consulting with State Historic Preservation Officers (SHPOs), involving the
public, or consulting with Native Hawaiian organizations (NHOs).
1
Agencies should supplement this document with their own agency-specific regulations, directives,
policies, and guidance pertaining to tribal consultation. Many have already done so. Federal agencies
should also be aware that many Indian tribes have their own statutes, regulations, and policies that apply
to projects and development on tribal lands. In addition, federal agency staff should refer questions about
the Section 106 review process, and the requirements to consult with Indian tribes within this process, to
their agency’s Federal Preservation Officer (FPO).
Finally, agency staff may obtain assistance from the ACHP in understanding and interpreting the
requirements of Section 106, including tribal consultation. For general information on the requirements of
Section 106, access the ACHP website at http://www.achp.gov.
For additional questions about tribal consultation, contact:
Office of Native American Affairs at
1
For information on consultation with NHOs, the ACHP provides Consultation with Native Hawaiian
Organizations in the Section 106 Review Process: A Handbook.
II. Federal Government Consultation with Indian Tribes
Many different statutes, regulations, executive orders, and federal policies direct federal agencies to
consult with Indian tribes including the National Historic Preservation Act (NHPA) as amended. Section
106 of the NHPA, 54 U.S.C. 306108 and its implementing regulations at 36 CFR part 800 (Section 106),
requires federal agencies to take into account the effects of projects they carry out, license, or financially
assist (undertakings) on historic properties and provide the Advisory Council on Historic Preservation
(ACHP) a reasonable opportunity to comment on those undertakings. The NHPA also requires that, in
carrying out its responsibilities under the Section 106 review process, a federal agency must consult with
any Indian tribe that attaches religious and cultural significance to historic properties that may be affected
by the agency’s undertakings. 54 U.S.C. 302706 (b).
The following is a very brief description of basic concepts regarding the federal government’s
responsibility towards and relationship with Indian tribes. There are many sources for additional
information including the BIA frequently asked questions.
A. The Government-to-Government Relationship between the United States and Indian
Tribes
The federal government’s unique relationship with each and every Indian tribe is embodied in the U.S.
Constitution, Indian treaties, court decisions, federal statutes, and executive orders. This relationship is
deeply rooted in history, dating back to the earliest contact between colonial and tribal governments. As
the colonial powers did, the United States acknowledges federally recognized Indian tribes as sovereign
nations; thus, federal government interaction with federally recognized Indian tribes takes place on a
“government-to-government” basis.
Legally, there is a distinction between Indian tribes that are federally recognized and those that are not.
Federal recognition signifies that the U.S. government acknowledges the political sovereignty and Indian
identity of an Indian tribe and from that recognition flows the obligation to conduct dealings with that
Indian tribe’s leadership on a “government-to-government” basis.
Executive Order 13175 (2000), Consultation and Coordination with Tribal Governments lists as one of its
purposes “to strengthen the United States’ government-to-government relationships with Indian tribes…”
Thus, the government-to-government consultation process continues to embody the unique relationship
between the United States and Indian tribes.
Federal agency staff responsible for carrying out tribal consultation should be familiar with the history of
the relationship between the U.S. government and Indian tribes because that history may influence the
context of consultation.
B. The Federal Trust Responsibility Toward Indian Tribes
The federal Indian trust responsibility is a legal obligation under which the United States “has charged
itself with moral obligations of the highest responsibility and trust” toward Indian tribes (Seminole Nation
v. United States, 1942). This obligation was first discussed by Chief Justice John Marshall in Cherokee
Nation v. Georgia (1831). Over the years, the trust doctrine has been at the center of numerous other
Supreme Court cases, thus making it one of the most important principles in federal Indian law.
The federal Indian trust responsibility is also a legally enforceable fiduciary obligation on the part of the
United States to protect tribal treaty rights, lands, assets, and resources, as well as a duty to carry out the
mandates of federal law with respect to American Indian and Alaska Native tribes and villages. In several
cases discussing the trust responsibility, the Supreme Court has used language suggesting that it entails
legal duties, moral obligations, and the fulfillment of understandings and expectations that have arisen
over the entire course of the relationship between the United States and the federally recognized tribes.
Each agency defines the scope of its trust responsibility to Indian tribes. The ACHP’s trust responsibility
is to ensure that its regulations implement the requirements of Section 106 of the National Historic
Preservation Act and that such regulations incorporate the procedural requirement that federal agencies
consult with Indian tribes that attach religious and cultural significance to historic properties that may be
affected by their undertakings.
Questions regarding your agency’s trust responsibility to Indian tribes should be directed to your tribal
liaison/Native American coordinator or office of general counsel. The ACHP neither defines such a scope
for others nor advises agencies on this issue.
C. Legal Requirements and Directives to Consult with Indian Tribes
1) Statutes
A number of federal statutes require federal agencies to consult or coordinate with Indian tribes.
2
This
section will address only those applicable in the areas of historic preservation, natural resource protection,
and cultural resource protection. It is useful to be familiar with these various statutory requirements not
only to ensure compliance, but also to explore opportunities to maximize consultation opportunities. For
instance, if a project requires compliance with both the National Historic Preservation Act (NHPA) and
the National Environmental Policy Act (NEPA), it may be helpful to carry out consultation in a
comprehensive manner by including discussions about historic properties and natural resources in the
same meetings. (Note: The ACHP regulations at 36 CFR. Section 800.8 set out principles and
requirements for coordinating or combining NHPA and NEPA procedures.) The ACHP and Council on
Environmental Quality (CEQ) have also jointly published NEPA and NHPA: A Handbook for Integrating
NEPA and Section 106.
In addition, federal agencies should talk with interested Indian tribes as early in the planning process as
possible to identify any special legal authorities that carry additional requirements for consultation or
consideration, such as a treaty that reserves certain tribal rights that could be impinged upon by a
proposed project.
Historic Preservation, Natural Resource Protection, and Cultural Resource Protection Statutes
The following are broad summaries of key federal historic preservation, natural resource protection, and
cultural resource protection statutes that require agencies to consult with Indian tribes or accommodate
tribal views and practices. This is not an exhaustive list of requirements, nor does it imply that each of
these statutes is applicable to each proposed project.
2
A list of federal authorities that require tribal consultation was compiled by an interagency working group
in a Progress Report on the Implementation of the Memorandum of Understanding Regarding Interagency
Coordination and Collaboration for the Protection of Indian Sacred Sites.
• The National Historic Preservation Act of 1966 (NHPA) is the basis for tribal consultation in
the Section 106 review process. Two portions of the NHPA that have a direct bearing on the
Section 106 review process are:
54 U.S.C. 302706 (a), which clarifies that properties of religious and cultural importance
to Indian tribes may be eligible for listing in the National Register of Historic Places; and
54 U.S.C. 302706 (b), which requires that federal agencies, in carrying out their Section
106 responsibilities, consult with any Indian tribe that attaches religious and cultural
significance to historic properties that may be affected by an undertaking.
The Section 106 regulations incorporate these provisions and reflect other directives about tribal
consultation from executive orders, presidential memoranda, and other authorities.
Section 106 of the NHPA requires federal agencies to consider the effects of projects they
carry out, license, or financially assist (undertakings) on historic properties and to provide
the ACHP an opportunity to comment on such undertakings. The procedure for meeting
Section 106 requirements is defined in its implementing regulations at 36 CFR Part 800,
“Protection of Historic Properties.”
3
This process, also known as the Section 106 review
process, seeks to avoid, minimize or mitigate adverse effects to historic properties from
undertakings.
The Section 106 regulations include both general direction regarding tribal consultation and specific
requirements at each stage of the review process. (Section 106 is discussed more fully in the next
section, “Consultation with Indian tribes under Section 106 of NHPA.”)
For more information about the NHPA and the Section 106 regulations, visit https://www.achp.gov/.
The National Environmental Policy Act of 1969 (NEPA) requires the preparation of an
environmental impact statement (EIS) for any proposed major federal action that may
significantly affect the quality of the human environment. Under NEPA, Federal agencies are
encouraged to consult with Indian tribes early in the planning process, and to invite Indian tribes
to be cooperating agencies in preparation of an EIS, when potential effects are on a reservation or
affect tribal interests. Tribal consultation under NEPA can include effects to treaty, trust, and
other natural resource issues, as well as to cultural resources in general, whether or not they meet
the specific definition of historic property under the NHPA. The NEPA review may also include
the government’s responsibilities under Executive Order (EO) 12898 Federal Actions to Address
Environmental Justice in Minority Populations and Low-Income Populations; EO 13175,
Consultation and Coordination with Indian Tribal Governments; the American Indian Religious
Freedom Act; and related statutes and policies that have a consultation component.
4
• The American Indian Religious Freedom Act of 1978 (AIRFA) establishes the policy of the
federal government “to protect and preserve for American Indians their inherent right of freedom
to believe, express, and exercise the traditional religions of the American Indian, Eskimo, Aleut,
and Native Hawaiians, including, but not limited to, access to sites, use and possession of sacred
objects, and the freedom to worship through ceremonials and traditional rites.”
3
36 CFR PART 800 -- PROTECTION OF HISTORIC PROPERTIES (incorporating amendments effective August 5, 2004)
4
NEPA and NHPA: A Handbook for Integrating NEPA and Section 106
• The Native American Graves Protection and Repatriation Act of 1990 (NAGPRA), Section
3(c) requires federal land-managing agencies to consult with federally recognized Indian tribes
prior the intentional removal or excavation of Native American human remains and other cultural
items as defined in NAGPRA from federal lands.
On tribal lands, planned excavation requires the consent of the appropriate Indian tribe (43 CFR §
10.3).
In instances where a proposed project that is funded or licensed by a federal agency may cross
federal or tribal lands, it is the federal land managing agency that is responsible for compliance
with NAGPRA. Detailed information about NAGPRA and its implementing regulations is
available at the National Park Service (NPS) National NAGPRA website.
5
2) Executive Orders
In many instances, presidential executive orders apply to agencies on an agency-wide or program-wide
basis rather than on a project-by-project basis. However, federal staff responsible for working or
coordinating with Indian tribal governments should be familiar with the applicable executive orders and
act in accordance with the intent of the directives. Several of the orders specific to consultation with
federally recognized Indian tribes include:
➢ Executive Order 13175, “Consultation and Coordination with Indian Tribal Governments”
(2000), directs federal agencies to respect tribal self-government and sovereignty, tribal rights,
and tribal responsibilities whenever they formulate policies “significantly or uniquely affecting
Indian tribal governments.” The executive order applies to all federal agencies other than those
considered independent federal agencies, encouraging “meaningful and timely” consultation with
Indian tribes, and consideration of compliance costs imposed on tribal governments when
developing policies or regulations that may affect Indian tribes.
➢ Executive Order 13007, “Indian Sacred Sites” (1996), applies to all federally owned lands
except “Indian trust lands.” It encourages land managing agencies to:
• accommodate access to and ceremonial use of Indian sacred sites by Indian religious
practitioners; and
• avoid adversely affecting the physical integrity of such sites.
➢ Executive Order 12898, “Federal Actions to Address Environmental Justice in Minority
Populations and Low-Income Populations” (1994), is designed to focus federal attention on the
environmental and human health conditions in minority communities and low-income
communities. It is also designed to promote non-discrimination in federal programs substantially
affecting human health and the environment.
• Section 6-606 of the order states that, “each federal agency responsibility set forth
under this order shall apply equally to Native American programs.”
D. Treaties
From 1778 to 1871, the federal government’s relations with Indian tribes were defined and conducted
largely through the treaty-making process. These treaties recognized the sovereignty of Indian tribes.
5
National Park Service Native American Graves Protection and Repatriation Act
They also established unique sets of rights, benefits, and conditions for the treaty-making tribes that
agreed to cede millions of acres of their homelands to the United States in return for recognition of
property rights in land and resources and federal protections.
Under the U.S. Constitution, treaties are part of the supreme law of the land, with the same legal force and
effect as federal statutes. Treaties bind both the federal government and the signing Indian tribe or tribes,
and generally constitute recognition of rights to lands and resources, as well as rights to fish, hunt, and
gather. An important consideration is the reserved rights doctrine in which any rights not expressly
addressed in the treaty are reserved to the Indian tribe. This means treaties address the specific rights
Indian tribes relinquished, not the rights they retained. As such, the federal government has an obligation
to honor and respect tribal rights and resources that are protected by treaties. This means that federal
agencies are bound to give effect to treaty language and, accordingly, must ensure that federal agency
actions do not conflict with tribal treaty rights. Integrating consideration of tribal treaty rights into agency
decision making processes is also consistent with the federal government’s trust responsibility to federally
recognized Indian tribes.
For more information, see Tribal Treaty Rights in the Section 106 Process.
E. The United Nations Declaration on the Rights of Indigenous Peoples
In 2010, President Obama announced that the United States supports the United Nations Declaration on
the Rights of Indigenous Peoples (Declaration). At the same time, the State Department issued
Announcement of U.S. Support for the Declaration on the Rights of Indigenous Peoples “which explains
the U.S. position on the Declaration. In it, the State Department explains that the Declaration:
“which—while not legally binding or a statement of current international law—has both moral
and political force. It expresses both the aspirations of indigenous peoples around the world
and those of States in seeking to improve their relations with indigenous peoples. Most
importantly, it expresses aspirations of the United States, aspirations that this country seeks to
achieve within the structure of the U.S. Constitution, laws, and international obligations,
while also seeking, where appropriate, to improve our laws and policies.”
In 2013, the ACHP formally adopted a plan to support the Declaration and subsequently issued two
guidance documents on the intersection of the Declaration and Section 106. Section 106 and the U.N.
Declaration on the Rights of Indigenous Peoples: General Information and Guidance addresses
consultation under the Declaration and the Section 106 process and Section 106 and the U.N. Declaration
on the Rights of Indigenous Peoples: Intersection and Common Issues: Article 18 and Section 106
addresses multiple intersections between the two.
While the Declaration is not legally enforceable, it is an important policy document. The ACHP
recommends that federal agencies familiarize themselves with it and consider ways in which the
Declaration supports their tribal consultation policies and practices. The ACHP provided a web page with
more information and guidance concerning the Declaration.
III. General Information about Consultation with Indian Tribes in the Section
106 Process
Consultation means the process of seeking, discussing, and considering the views of other
participants, and, where feasible, seeking agreement with them regarding matters arising
in the Section 106 process.(36 CFR Section 800.16 (f)).
Consultation is more than simply notifying an Indian tribe about a planned undertaking. The ACHP views
consultation as a process of communication that may include written correspondence, meetings, telephone
conferences, site visits, and e-mails.
The requirements to consult with Indian tribes in the Section 106 review process are derived from the
specific language in the NHPA at 54 USC 302706(b). They are also based on the unique legal relationship
between federally recognized Indian tribes and the federal government embodied in the U.S. Constitution,
treaties, court decisions, federal statutes, and executive orders.
Federal agencies are required to consult with Indian tribes at specific steps in the Section 106 review
process and regardless of whether the undertaking is located on or off tribal lands. Tribal consultation for
projects off tribal lands is required because the NHPA does not restrict tribal consultation to tribal lands
alone and those off tribal lands may be the ancestral homelands of an Indian tribe or Indian tribes, and
thus may contain historic properties of religious and cultural significance to them.
Regulatory Principles and General Directions for Section 106 Tribal Consultation
The procedures for meeting Section 106 requirements are defined in the Section 106 regulations,
“Protection of Historic Properties” (36 CFR Part 800). Under the NHPA, “historic properties” are defined
as those properties that are listed on the National Register of Historic Places, or are eligible for such
listing.
The regulations provide both overall direction as well as specific requirements regarding consultation at
each step of the Section 106 review process. The Section 106 regulations at 36 CFR Section 800.2(c)(2)
outline the following important principles and general directions to federal agencies regarding
consultation with Indian tribes:
• The agency shall ensure that consultation provides the Indian tribe a reasonable opportunity to
identify its concerns about historic properties; advise on the identification and evaluation of
historic properties, including those of traditional religious and cultural importance to them;
articulate its views on the undertaking’s effects on such properties; and participate in the
resolution of adverse effects.
• Tribal consultation should commence early in the planning process, in order to identify and
discuss relevant preservation issues and plan how to address concerns about confidentiality of
information obtained during the consultation process.
• Historic properties of religious and cultural significance to an Indian tribe may be located on
ancestral (also referred to as aboriginal) homelands, or on officially ceded lands (lands that were
ceded to the U.S. government by the Indian tribe via treaty). In many cases, because of migration
or forced removal, Indian tribes may now be located far away from historic properties that still
hold significance for them. Accordingly, the regulations require that federal agencies make a
reasonable and good-faith effort to identify Indian tribes that may attach religious and cultural
significance to historic properties that may be affected by the undertaking, even if Indian tribes
are now located a great distance away from such properties and undertakings.
• The agency official shall ensure that consultation under the Section 106 review process is
respectful of tribal sovereignty in conducting consultation and must recognize the government-to-
government relationship that exists between the federal government and federally recognized
Indian tribes.
• An Indian tribe may enter into an agreement with a federal agency regarding any aspect of tribal
participation in the review process. The agreement may specify an Indian tribe’s geographic area
of interest, types of projects about which they wish to be consulted, or provide the Indian tribe
with additional participation or concurrence in agency decisions under Section 106 provided that
no modification is made to the roles of other parties without their consent.
The Section 106 regulations recognize an Indian tribe’s sovereign authority regarding proposed
undertakings on or affecting historic properties on its tribal lands in several ways. The regulations
require the federal agency to consult with the THPO or (designated tribal representative if the Indian tribe
has not assumed THPO duties), as appropriate and provide the THPO or tribe an opportunity to review,
and thus to concur with or object to, federal agency findings and determinations. The THPO or tribe is
also a signatory to memoranda of agreement (MOA) or programmatic agreements (PA) that conclude the
review process. If the THPO/Tribe terminates consultation, the ACHP must provide its comments to the
head of the agency rather than execute an agreement without the Indian tribe.
Note that the regulations clarify that THPOs and those Indian tribes that do not have a 101(d)(2)
THPO have the same rights in the process for undertakings on or affecting historic properties on
tribal lands, for purposes of Section 106. The difference is whether the SHPO participates. Where
there is a THPO, the SHPO only participates in consultation if the THPO invites the SHPO to
participate, if an undertaking on tribal lands affects a historic property off tribal lands, or if a non-
tribal member who owns a parcel within the exterior boundaries of the reservation so requests.
For undertakings on tribal lands where there is no THPO, the federal agency consults with both
the designated tribal official and the SHPO.
Role of the Tribal Historic Preservation Officer (THPO)
6
in the Section 106 Process
The 1992 amendments to the NHPA provided Indian tribes with the ability to assume the role of the State
Historic Preservation Officer (SHPO) on their tribal lands. Therefore, Tribal Historic Preservation
Officers (THPOs) are an essential participant in the Section 106 review process on tribal lands. While the
number of THPOs has steadily increased since 1992, there is still some confusion about the role of the
THPO. Therefore, the ACHP issued Role of the Tribal Historic Preservation Officer in the Section 106
Process.
In 2014, the ACHP also adopted ACHP Policy Statement Regarding Federal Relationships with Tribal
Historic Preservation Officers. The policy is intended to highlight the importance of THPOs not only in
the Section 106 process but also in the national preservation program. The policy also served to commit
the ACHP to take certain actions to support THPOs.
6
The National Park Service (NPS) administers the Tribal Historic Preservation Program and maintains an
up-to-date listing of all Indian tribes who have established 101(d)(2) Tribal Historic Preservation Officers and the
contact information of their Tribal Historic Preservation Officers.
IV. General Questions and Answers
While the Section 106 regulations are fairly prescriptive in nature, they only direct federal agencies on the
process and at which stages of the process to engage in consultation. They do not provide direction on
how to carry out consultation. Thus, the questions and answers are intended to clarify the most common
questions and issues regarding tribal consultation that arise in the Section 106 review process, typically
before an agency begins the review process or very early in the process.
1) When are federal agencies required to consult with Indian tribes?
The NHPA requires federal agencies, in carrying out the Section 106 review process, to consult with
Indian tribes when a federal undertaking may affect historic properties of traditional religious and cultural
significance to them. An “undertaking” means a project, activity, or program funded in whole or in part
under the direct or indirect jurisdiction of a federal agency, including those carried out by or on behalf of
a federal agency; those carried out with federal financial assistance; or those requiring a federal permit,
license or approval. This requirement applies to all undertakings regardless of project location.
2) Which Indian tribes must be consulted?
Federally recognized Indian tribes that attach religious and cultural significance to historic properties that
may be affected by undertakings must be consulted. Federal agencies must make “a reasonable and good
faith” effort to identify each and every such Indian tribe and invite them to be consulting parties.
This includes Indian tribes that no longer reside in their ancestral territory but may still have ancestral ties
to the area that includes the proposed project. Many Indian tribes were removed from their homelands,
while others traditionally moved from place to place. Consequently, an Indian tribe may very well attach
significance to historic properties located in an area where they may not have physically resided for many
years. If an Indian tribe that attaches significance to a historic property has not been invited to consult by
the federal agency, the tribe may request in writing to be a consulting party. The NHPA and the Section
106 regulations require that the agency grant consulting party status to such an Indian tribe.
3) How would I know if an Indian tribe is federally recognized?
Consult the Indian Affairs Federal Register Notices maintained by the U.S. Department of the Interior’s
Bureau of Indian Affairs (BIA). Indian Entities Recognized and Eligible To Receive Services From the
United States Bureau of Indian Affairs is regularly published in the Federal Register.
4) If there are no federally recognized Indian tribes in the state where the project is located, does
the agency still have to consult with any Indian tribes?
Even when there are no federally recognized Indian tribes with tribal lands in the state where the project
is located, the agency must still make a reasonable and good faith effort to identify and consult with any
Indian tribes that attach religious and cultural significance to historic properties that may be affected by
the undertaking. The circumstances of history may have resulted in an Indian tribe now being located a
great distance from its ancestral homelands and places of importance. Therefore, federal agencies are
required to identify Indian tribes that may attach religious and cultural significance to historic properties
in the area of the undertaking, even if there are no Indian tribes near the area of the undertaking or within
the state.
5) What is the federal agency’s responsibility to consult with state recognized Indian tribes or
Indian tribes who have neither federal nor state recognition?
The Section 106 regulations at 36 CFR Section 800.2(c)(5), clarify that a federal agency may invite such
groups to participate in consultation as “additional consulting parties” based on a “demonstrated interest”
in the undertaking’s effects on historic properties. However, the term “Indian tribe” as it appears in the
NHPA refers only to federally recognized Indian tribes, which includes Alaska Native Villages and
Village and Regional Corporations. In other words, only federally recognized Indian tribes that attach
religious and cultural significance to historic properties that may be affected by the proposed undertaking
have a statutory right to be consulting parties in the Section 106 process.
The ACHP’s Guide to Working with Non-Federally Recognized Tribes in the Section 106 Process
provides information and guidance for federal agencies regarding engagement with non-federally
recognized tribes.
6) What are appropriate consultation methods for individual undertakings?
The consultation process must provide an Indian tribe a reasonable opportunity to:
a) Identify its concerns about historic properties
b) Advise on the identification and evaluation of historic properties including those of religious and
cultural significance to the Indian tribe
c) Articulate views on the undertaking’s effects on such properties; and
d) Participate in the resolution of adverse effects.
Consultation should begin with a formal letter from the agency official to the appropriate tribal official,
usually the tribal leader, with a copy to the THPO or cultural resources staff person if there is no THPO.
Face-to-face meetings or on-site visits may be the most practical way to conduct consultation. In all cases,
consultation should be approached with flexibility that respects the tribe’s role within the overall project
planning process and facilitates its full participation.
Documentation of consultation is important because it allows consulting parties to more accurately track
the stages of the Section 106 process. Federal agencies should document all efforts to initiate and carry
out consultation with an Indian tribe or Indian tribes. Such documentation, in the form of correspondence,
telephone logs, e-mails, etc., should be included in the agency’s official Section 106 record. Agencies
should also keep notes so that the consultation record documents the content of consultation meetings,
site visits, and phone calls in addition to information about dates and who participated. Doing so allows
agencies and consulting parties to review proceedings and correct any errors or omissions, thus
facilitating better overall communication. Keeping information confidential can present unique
challenges. See question 3(b) in Section V for more information.
7) Can a federal agency pay for expenses that facilitate consultation with Indian tribes?
Yes, the ACHP encourages federal agencies to take the steps necessary to facilitate tribal participation at
all stages of the Section 106 process. These steps may range from scheduling meetings in places and at
times that are convenient for Indian tribes, to paying travel expenses for participating tribal
representatives. Indeed, agencies are strongly encouraged to use available resources to help overcome
financial impediments to effective tribal participation in the Section 106 process. Likewise, if a tribe has
consented (in advance and in writing) to allow an applicant for federal assistance or federal permit to
coordinate with the Indian tribe, the applicant is encouraged to use available resources to facilitate and
support such tribal interaction. However, federal agencies should not expect to pay a fee to an Indian tribe
or any consulting party to provide comments or concurrence in an agency finding or determination.
8) Can a federal agency pay a fee to an Indian tribe for services provided in the Section 106
process?
Yes, if during the identification and evaluation phase of the Section 106 process, the federal agency or
applicant asks an Indian tribe for specific information and documentation regarding the presence,
location, nature, and condition of individual sites, or request that a survey be conducted by the tribe. In
doing so, the agency or applicant is essentially asking the Indian tribe to fulfill the duties of the agency in
a role similar to that of a consultant or contractor. In such cases, the Indian tribe would be justified in
requesting payment for its services. Since Indian tribes are a recognized source of information regarding
historic properties of religious and cultural significance to them, a federal agency should reasonably
expect to pay for work carried out by Indian tribes at its request. The agency or applicant is free to refuse
just as it may refuse to pay for an archaeological consultant, but the agency still retains the responsibility
to identify historic properties, evaluate their National Register eligibility, and assess effects on those
historic properties, through reasonable methods. For more clarification, the ACHP issued Guidance on
Assistance to Consulting Parties in the Section 106 Review Process.
9) What specific activities might be reimbursed?
Examples of reimbursable costs may include those costs associated with expert consultants to identify and
evaluate historic properties as outlined in the immediately preceding answer. This may include field visits
to provide information about specific places or sites, monitoring activities, research associated with
historical investigation, documentation production costs, and related travel expenses.
10) If a proposed undertaking is on tribal lands, but the Indian tribe has not assumed THPO duties,
does the agency consult with the tribe’s designated representative and the SHPO?
Yes, the agency carries out consultation with the Indian tribe regarding undertakings on or affecting that
tribe’s lands in addition to—and on the same basis as—consultation with the SHPO. If the SHPO
withdraws from consultation, the agency and the tribal representative may complete the review process
with any other consulting parties. While the SHPO may participate in consultation, the Indian tribe
maintains the same rights of consultation for agency findings and determinations, and the same rights to
be signatories to MOAs and PAs that would apply on their tribal lands, as it would if it had a THPO.
Be aware that some Indian tribes may not wish to consult with the SHPO, other Indian tribes, or
consulting parties, thus, requiring the agency to approach consultation with flexibility and understanding.
In fact, some Indian tribes may not welcome other consulting parties to meetings or site visits on tribal
lands, and they are within their rights to do so. However, the agency will still be responsible for carrying
out consultation with the SHPO and other consulting parties.
11) Can Indian tribes or federal agencies request ACHP involvement in the Section 106 review
process?
Yes. Any party, including Indian tribes, may request that the ACHP review the substance of any federal
agency’s finding, determination, or decision or the adequacy of an agency’s compliance with the Section
106 regulations.
An Indian tribe may request that the ACHP enter the Section 106 review process for any number of
reasons, including concerns about the identification, evaluation or assessment of effects on historic
properties of religious and cultural significance to them. It may also request ACHP involvement in the
resolution of adverse effects or where there are questions about policy, interpretation, or precedent under
Section 106. The ACHP has discretion in determining whether to become involved in the process.
The ACHP issued Whom to Contact if You Have Section 106 Issues: Guidance for Indian Tribes and
Native Hawaiian Organizations about how to contact the ACHP for assistance.
12) Does the ACHP have a policy on the treatment of burials that are located on state or private
lands (and thus not subject to the disinterment provisions of NAGPRA)?
Yes. On February 23, 2007, the members of the Advisory Council on Historic Preservation unanimously
adopted its revised “Policy Statement Regarding the Treatment of Burial Sites, Human Remains and
Funerary Objects.” This policy is designed to guide federal agencies in making decisions about the
identification and treatment of burial sites, human remains, and funerary objects encountered in the
Section 106 process in various instances including those where federal or state law does not prescribe a
course of action. The policy is not exclusively directed toward Native American burials, human remains
or funerary objects, but those would be included under the policy. In accordance with Section 106, the
policy does not recommend a specific outcome from the consultation process, but rather focuses on issues
and perspectives that federal agencies ought to consider when making their Section 106 decisions. The
policy statement is available for download.
13) What happens in the Section 106 process when the undertaking is proposed in an area that is
addressed in a treaty between an Indian tribe and the U.S. government?
See Tribal Treaty Rights in the Section 106 Process.
14) What is a consultation agreement or protocol?
The Section 106 regulations at 36 CFR § 800.2(c)(2)(ii)(E) provide for the development of agreements
between federal agencies and Indian tribes or NHOs to tailor how consultation between those parties may
be carried out. Such agreements are often not project-specific but instead, are usually more general and
are focused on the relationship between the agency and the Indian tribe or NHO. This type of agreement
can cover all aspects of the consultation process with the tribe or NHO and could grant an Indian tribe or
NHO additional rights to participate or concur in agency decisions in the Section 106 process beyond
those specified in the regulations.
The only restriction on the scope of such agreements is that the role of other parties in the Section 106
review process may not be modified without their consent. These consultation agreements differ from
MOAs and PAs as they do not address the full range of the agency’s consultation responsibilities with
other parties nor do they modify or conclude the agency’s Section 106 compliance. Consultation
agreements are a tool to help the agency and the tribe or NHO work better together in the Section 106
context. They can establish protocols for carrying out tribal or NHO consultation, including how the
agency will address tribal or NHO concerns about confidentiality of sensitive information.
The ACHP developed guidance, available online, on the difference between Section 106 agreements and
consultation agreements or protocols.
15) Is a federal agency required to consult with an Alaska Native Regional or Village Corporation
(ANCs) in the Section 106 process?
Yes. The 2004 consolidated appropriations law, as amended, requires federal agencies to consult with
ANCs “on the same basis as Indian tribes under Executive Order 13175.” Since no ANCs are currently
recognized by the Department of the Interior as Indian tribes, federal agencies are not required to consult
with them on a government-to-government basis. Pub. L. No. 108-199, div. H, Section 161, 118 Stat. 3,
452 (2004), as amended by Pub. L. No. 108-447, div. H, Section 518, 118 Stat. 2809, 3267 (2004)
V. Consultation with Indian Tribes for Proposed Undertakings Off—and
On—Tribal Lands
As noted earlier in the handbook, tribal consultation is required for all federal undertakings, regardless of
whether the undertaking’s Area of Potential Effect (APE) includes federal, tribal, state, or private lands so
long as the undertaking may affect historic properties of religious and cultural significance to an Indian
tribe. However, different Section 106 consultation requirements do exist, depending on whether the
proposed undertaking may affect non-tribal or tribal lands.
This section outlines tribal consultation requirements for proposed undertakings that will occur:
• “off” tribal lands (in other words, on non-tribal land such as federal, state, or private lands outside
tribal lands);
• “on” or affecting tribal lands. Tribal lands are defined in the NHPA and the Section 106
regulations (36 CFR Part 800) as all lands within the exterior boundaries of any Indian
reservation and all dependent Indian communities.
7
• Where the required steps are the same both off and on (or affecting) tribal lands, a single response
is provided.
This section of the handbook is presented to correspond with the Section 106 review process’s four steps
of initiation, identification, assessment, and resolution.
A. Initiation of the Section 106 Process
1) How would I know if historic properties of traditional religious and cultural significance to
Indian tribes may be affected by the proposed undertaking?
Unless such properties have already been identified and the information is readily available, you probably
will not know in advance. As with any undertaking that might affect historic properties, you must
determine whether the proposed undertaking is generically the kind that might affect historic properties
assuming such properties are present. Therefore, if the undertaking is the kind of action that might affect
places such as archaeological sites, burial grounds, sacred landscapes or features, ceremonial areas, or
plant and animal communities, then you should consult with Indian tribes that might attach religious and
cultural significance to such places. Please note that this list of examples is not all-inclusive, as the
histories, cultures, and traditions of Indian tribes vary widely. It is through consultation with Indian tribes
themselves that such properties can be properly identified and evaluated.
2) If a federal undertaking will not occur on or affect historic properties on tribal lands, is the
agency still required to identify Indian tribes and invite them to consult?
Yes, the NHPA requires consultation with Indian tribes that may attach religious and cultural significance
to historic properties that may be affected by the proposed undertaking, regardless of the location of the
proposed undertaking. At this stage of the process, the federal agency identifies any Indian tribes that
7
The U.S. Supreme Court decision in Alaska v. Native Village of Venetie Tribal Government, 522 U.S. 520
(1998) held that “dependent Indian communities” refers to a limited category of Indian lands that are neither
reservations nor allotments and that must satisfy two requirements: first, they must have been set aside by the federal
government for the use of the Indians as Indian land; second, they must be under federal superintendence.
might attach religious and cultural significance to historic properties that may exist in the proposed
undertaking’s Area of Potential Effect (APE), and invites them to consult.
3) How do I identify the Indian tribes that must be invited to consult?
Identification of Indian tribes that must be invited to consult could entail a number of initiatives.
For instance, it might be useful to check with other federal agencies and their cultural resource specialists
in the state or region for a list of Indian tribes with whom they have consulted in past Section 106
reviews. The SHPO and Indian tribes in the region might also be able to suggest which Indian tribes to
contact. Other sources for such information may include ethnographies, local histories, experts at local
universities, and oral accounts.
Certain websites may be useful references as part of a broader agency effort to identify relevant Indian
tribes. The National Park Service maintains the Native American Consultation Database, which may be
helpful in identifying Indian tribes with an interest in an area. Other Internet sources include MAPS: GIS
Windows on Native Lands, Current Places, and History, which provides maps on current and ancestral
locations of Indian lands, and the Library of Congress Indian Land Cessions document website, which has
information on historic Indian land areas.
National and regional intertribal organizations, such as the National Congress of American Indians, the
United South and Eastern Indian Tribes, the National Association of Tribal Historic Preservation Officers,
the Michigan Anishinaabek Cultural Preservation and Repatriation Alliance, and the Affiliated Tribes of
Northwest Indians may also be able to provide assistance in identifying Indian tribes with ancestral
connections to an area.
While the ACHP cannot vouch for the accuracy of any particular sources, thorough research using these
and other sources should produce a reasonably accurate list of Indian tribes to be consulted. Keep in mind
that identification of Indian tribes with ancestral connections to an area is not a “one stop shopping”
endeavor in which any single source can be depended upon to fulfill the agency’s legal responsibilities.
Once the agency has identified an Indian tribe or Indian tribes that may attach religious and cultural
significance to any historic properties that may exist in the APE, the agency must invite them to consult.
Finally, it is important to remember that documentary or other sources of information that do not clearly
support an Indian tribe’s assertions should not be used to deny an Indian tribe the opportunity to
participate in consultation. A common misunderstanding is that an Indian tribe needs to document its ties
to historic properties in the area of the undertaking. Instead, the NHPA requires agencies to consult with
any federally recognized Indian tribe that attaches religious and cultural significance to a historic
property. It stands to reason that the best source for determining what historic properties have significance
for an Indian tribe would be the experts designated by that Indian tribe. Such experts might include elders,
traditional practitioners, tribal historians, the THPO or tribal cultural resource staff. The Indian tribe will
designate the appropriate tribal representative(s) to represent its interests in the Section 106 consultation
process.
4) If the undertaking is on tribal lands or will affect historic properties on tribal lands, do I also
have to consult with other Indian tribes?
Undertakings on tribal lands that are carried out by a federal agency, that use federal funds, or that require
federal approval/licensing/permitting are subject to Section 106 review. The federal agency will consult
with the THPO, or, if the Indian tribe has not assumed THPO duties, with its cultural resource officer, or
another designated tribal official. The Indian tribe may also wish to have one or more representative of its
tribal government directly involved in the consultation process.
It may be easy to assume that because the proposed undertaking is located on tribal lands, there is no need
to identify additional Indian tribes that may attach religious and cultural significance to historic properties
within the APE. However, the responsibility for the agency to identify additional Indian tribes that may
attach religious and cultural significance to any historic properties within the APE applies even when an
undertaking is on tribal land. Therefore, the suggestions given above in question #3 above are also
applicable here.
The need to identify Indian tribes that may attach significance to sites within an APE on another Indian
tribe’s lands is rooted in history. When the U.S. government established Indian reservations, it often set
boundaries where they did not previously exist. Many Indian tribes were removed to reservations far from
their traditional homelands and relocated onto the homelands of other Indian tribes. In other instances,
territories that were shared by several Indian tribes became the reservation of one exclusively. The end
result is the possibility that an undertaking on one Indian tribe’s lands (within the exterior boundaries of
its reservation) may contain historic properties that hold religious and cultural significance for another
Indian tribe or tribes, as well.
Therefore, the agency carrying out, or providing the funding or approval/licensing/permitting, for the
undertaking on tribal lands still has a responsibility to identify any other Indian tribes that may attach
religious and cultural significance to historic properties within the proposed undertaking’s APE and invite
them to consult. Accordingly, it may be necessary to consult with each Indian tribe individually and to do
so off the reservation.
5) Who initiates the consultation process with an Indian tribe?
Consultation with an Indian tribe or tribes should be initiated by the agency official
8
through a letter to the
leadership of each Indian tribe, with a copy going to each Indian tribe’s THPO or cultural resource officer
if there is no THPO. Indian tribes are sovereign nations and their leaders must be shown the same respect
and formality given to leaders of other sovereign nations. Since tribal elections often result in changes in
leadership, agency officials should check the BIA tribal leaders list or contact the Indian tribe prior to
executing the letters in order to ascertain that the correspondence is correctly addressed to the appropriate
points of contact. Unless the letter is sent via email, it is helpful to follow up such correspondence with
direct telephone communication to ensure the letter has been received.
If the agency official has correspondence from tribal leadership designating a person or position within
the tribe to act on the tribe’s behalf in the Section 106 process, the agency may initiate consultation
accordingly. It is good practice, in this instance, to send a copy of all correspondence to tribal leadership
as well.
6) Can applicants for federal permits or contractors hired by the agency initiate and carry out
tribal consultation?
Federal agencies cannot unilaterally delegate their responsibilities to conduct government-to-government
consultation with Indian tribes to non-federal entities. The ACHP issued guidance Limitations on the
Delegation of Authority by Federal Agencies to Initiate Tribal Consultation under Section 106 of the
National Historic Preservation Act.
8
As defined in Section 800.2 of the ACHP regulations, an agency official is one who has jurisdiction over
the undertaking and takes legal and financial responsibility for Section 106 compliance.
Since Indian tribes are sovereign nations and their relationship with the federal agency exists on a
government-to-government basis, federal agency consultation with them cannot be unilaterally delegated
to a non-federal party. However, if an Indian tribe agrees in advance, the agency may rely, where
appropriate, on an applicant (or the applicant’s contractor), or the agency’s own historic preservation
contractor to carry out day-to-day, project-specific tribal coordination. In order to ensure that the tribe, the
agency, and the applicant or contractor all fully understand that the tribe may request the federal agency
to step in and assume consultation duties if problems arise, the agency should obtain the tribe’s
concurrence with the agency’s delegation in writing.
Even when an Indian tribe agrees to coordinate with an applicant, the federal agency remains responsible
for ensuring that the Section process is carried out properly, meeting the letter and spirit of the law, as
well as resolving any issues or disputes. Therefore, any agreement between the agency and an Indian tribe
documenting the tribe’s willingness to consult with a non-federal entity should contain a provision that
explains the agency’s responsibility to assume consultation responsibilities at the tribe’s request. The
government-to-government relationship requires that the federal agency is ultimately responsible for
tribal consultation.
7) What are the consultation responsibilities for undertakings that involve more than one federal
agency?
The Section 106 regulations at 36 CFR Section 800.2 (a)(2) provide that, if more than one agency is
involved in an undertaking, some or all of the agencies may designate a lead federal agency who will act
on their behalf to fulfill their collective responsibilities under Section 106, including tribal consultation.
Those agencies that do not designate a lead agency remain individually responsible for their Section 106
compliance; thus, they each would need to initiate and carry out tribal consultation duties for their Section
106 compliance for their undertaking. For more clarification, the ACHP published Frequently Asked
Questions About Lead Federal Agencies in Section 106 Review.
B. Identification of Historic Properties
1) Does the federal agency consult with Indian tribes to carry out identification and evaluation of
historic properties?
Yes, regardless of the location of the undertaking, the agency consults with Indian tribes to carry out
identification efforts and to evaluate the National Register eligibility of identified properties.
Many agencies assume that any preservation professionals can identify historic properties of significance
to Indian tribes when they conduct archaeological or historic property surveys. However, unless the
preservation professional has been specifically authorized by an Indian tribe to carry out such work, it
should not be assumed that the person possesses the appropriate expertise to identify such properties. The
appropriate individual to carry out the identification and evaluation of historic properties of significance
to an Indian tribe is the representative designated by the tribe for this purpose. Identification efforts may
include site visits to assist in identifying these types of properties.
The Section 106 regulations state that the agency official shall acknowledge that Indian tribes possess
special expertise in assessing the National Register eligibility of historic properties that may possess
religious and cultural significance to them (36 CFR § 800.4(c)(1)). Special expertise is another term for
the knowledge Indian tribes possess that enables them to identify places of religious and cultural
significance to their tribes, which then may discuss these important places with the federal agency during
the section 106 review process. Special expertise, at times, may also be referred to as traditional
knowledge, traditional cultural knowledge or indigenous knowledge, or traditional ecological knowledge.
Indian tribes have their own way of generating, transmitting, and protecting this information. For more
information about traditional knowledge, see Traditional Knowledge and the Section 106 Process:
Information for Federal Agencies and Other Participants.
The agency should provide Indian tribes with the same information that is provided to the SHPO during
consultation, including information on buildings and other standing structures that may be affected by the
proposed undertaking. A common assumption is that Indian tribes are not interested in historic buildings
and structures. However, a federal agency should not assume to know what is of significance to a
particular Indian tribe unless it has been advised by that tribe. For instance, there may be a historic school
in the path of a proposed undertaking. The school might have originally served as an Indian boarding
school in its early history and may be of significance to an Indian tribe or tribes.
When the Undertaking is on Tribal Lands
On tribal lands, the agency consults with that Indian tribe’s THPO, or other tribal official designated for
this purpose. The Indian tribe may also involve other tribal experts to assist the THPO in both the
identification and evaluation of the National Register eligibility of any historic properties. When an
Indian tribe has a THPO, the SHPO does not participate in the Section 106 process for proposed
undertakings on tribal lands. The few exceptions to this rule occur when the THPO invites the SHPO to
participate; when an undertaking on tribal lands affects a historic property located off tribal land; and
when a non-tribal member who owns land in fee simple within the exterior boundaries of the Indian
tribe's reservation so requests. In those limited instances, the SHPO participates in consultation in
addition to the THPO.
If the Indian tribe has not assumed THPO responsibilities, the agency will carry out identification and
evaluation in consultation with both the tribe’s designated official and the SHPO. In this situation, the
designated tribal official has the same rights as a THPO would have in eligibility determinations.
As noted above, it is possible that the APE for a proposed federal undertaking on one Indian tribe's lands
may contain historic properties that are of religious and cultural significance to other Indian tribes. In
such cases, the federal agency must consult with all Indian tribes that attach religious and cultural
significance to historic properties. However, the federal agency must respect the sovereignty of the Indian
tribe upon whose land the undertaking is proposed. Accordingly, it may be necessary to approach
consultation with maximum flexibility and consult with each Indian tribe individually and to do so off the
reservation.
In such cases, concerns may arise about confidentiality and protection of sensitive information. The
ACHP issued Frequently Asked Questions on Protecting Sensitive Information About Historic Properties
Under Section 304 of the NHPA and jointly issued a policy statement with other federal agencies
regarding the confidentiality of information about Indian sacred sites.
2) How can I identify historic properties that may possess traditional religious and cultural
significance to Indian tribes and determine their National Register eligibility?
The identification of historic properties of traditional religious and cultural significance to an Indian tribe
is made by that tribe’s designated representative as part of the Section 106 consultation process. This is
true regardless of whether the proposed undertaking is off or on tribal lands.
3) What procedures should be followed if an Indian tribe does not want to divulge information to
the federal agency regarding places of traditional religious and cultural significance?
Many Indian tribes have belief systems that require the location and even the existence of traditional
religious and cultural properties not be divulged. Therefore, it is vital that federal agencies work with
Indian tribes to identify sensitive locations while respecting tribal desires to withhold specific information
about such sites. The ACHP’s regulations at 36 CFR Section 800.4(b)(i) state, in part, that “[t]he agency
official shall take into account any confidentiality concerns raised by Indian tribes during the
identification process.”
The NHPA and the Section 106 regulations also provide a vehicle for protecting information that an
Indian tribe has disclosed for the purpose of identification and evaluation in the Section 106 process.
Section 304 of the NHPA (16 U.S.C. 470w-3(a)) and the regulations at 36 CFR Section 800.11(c)(1)
provide that an agency, after consultation with the Secretary of the Interior, “shall withhold from
disclosure to the public” information about the location, character, or ownership of a historic property
when the agency and the Secretary determine that the disclosure of such information may cause a
significant invasion of privacy; risk harm to the historic property; or, impede the use of a traditional
religious site by practitioners. After such a determination, the Secretary of the Interior will determine
who, if anyone, may have access to the information for purposes of the NHPA.
The ACHP issued extensive guidance on handling sensitive information in the Section 106 process. And,
the Departments of the Interior, Agriculture, Defense, and Energy and the ACHP have issued a policy
statement regarding confidentiality of information about Indian sacred sites.
4) Is the federal agency required to verify a tribe’s determination of significance with
archaeological or ethnographic evidence before making a National Register eligibility
determination?
No. The agency is not required to verify an Indian tribe’s determination that a historic property is of
religious and cultural significance to the tribe. The ACHP regulations at 36 CFR 800.4(c)(1) state, in part,
that “[t]he agency official shall acknowledge that Indian tribes…possess special expertise in assessing the
eligibility of historic properties that may possess religious and cultural significance to them.” The
National Register considers the information obtained from an Indian tribe’s recognized expert to be a
valid line of evidence in considering determinations of significance. The National Register of Historic
Places website has more information about the program, making eligibility determinations, and contacting
staff of the National Register.
5) Does the federal agency need to obtain an Indian tribe’s concurrence with the agency’s
determination of National Register eligibility?
a) Off Tribal Lands
No. The agency does not need to obtain an Indian tribe’s concurrence with eligibility determinations
when the undertaking is not on tribal lands or the affected property is not on tribal lands. The agency only
needs the concurrence of the SHPO for a determination and, absent such concurrence, the matter goes to
the Keeper of the National Register for final resolution. The federal agency must acknowledge, however,
that Indian tribes possess special expertise in assessing the eligibility of historic properties that may be of
significance to them, as required in the Section 106 regulations at 36 CFR Section 800.4(c)(1).
Also, if an Indian tribe disagrees with the federal agency’s determination of eligibility, the Indian tribe
may, per the Section 106 regulations at 36 CFR 800.4(c)(2), ask the ACHP to request that the federal
agency obtain a formal eligibility determination from the Keeper of the National Register.
b) On Tribal Lands
On tribal lands, the THPO (or the tribe’s designated official) have rights of concurrence on National
Register eligibility determinations. If the agency and the THPO/tribal official do not agree on a site’s
eligibility, the ACHP regulations at 800.4(c)(2) state that the agency shall obtain a determination of
eligibility from the Keeper of the National Register.
6) Once the required identification and evaluation efforts are completed, does the federal agency
need to consult with an Indian tribe in reaching a finding that there are no historic properties that
will be affected by the undertaking, or that there are historic properties present but the
undertaking will have no effect on them?
a) Off Tribal Lands
Despite the requirements for tribal consultation up to this point in the process, the agency does not need to
consult with an Indian tribe in reaching a finding that there are no historic properties present, or that the
proposed undertaking will not affect an identified historic property. However, the agency must provide
notification and documentation supporting its finding on these questions to any consulting Indian tribe.
If a consulting tribe disagrees with the agency’s finding, it should immediately contact the ACHP and
request that the ACHP object to the finding, per CFR 800.4(d)(1)(iii). If, upon the review of the finding,
the ACHP also objects to the finding, the ACHP may provide its opinion to the agency official, and, if the
ACHP determines the issue warrants it, to the head of the agency. The regulations stipulate that if the
ACHP objects to a finding, it must do so within 30 days of the agency’s issuance of that finding so a
timely filing of an objection to the ACHP is critical.
b) On Tribal Lands
On tribal lands, a finding of no historic properties present or no historic properties affected requires the
agency to provide the THPO (or designated tribal official, if the tribe has not assumed THPO duties)
documentation of this finding. The agency also provides this documentation to other consulting parties.
Upon receipt of an adequately documented finding, the THPO/tribe has 30 days to object. If the
THPO/tribe does not object within 30 days, the agency’s Section 106 responsibilities have been fulfilled.
If the THPO/tribe does object to the finding, the agency shall either consult with the THPO/tribe to
resolve the disagreement, or forward the finding to the ACHP and request that it be reviewed. When the
agency makes such a request, it is also required to concurrently notify all consulting parties of the request
and make the request and documentation available to the public. The ACHP then has 30 days to review
the finding and provide the agency official, and, if the ACHP determines the issue warrants it, the head of
the agency, with the ACHP’s opinion regarding the finding.
C. Assessment of Adverse Effects
1) Which parties does the federal agency consult with to apply the criteria of adverse effect to
historic properties within the APE?
a) Off Tribal Lands
The agency consults with the SHPO and Indian tribes in applying the criteria of adverse effect to historic
properties within the APE. Again, federal agencies must recognize the special expertise of Indian tribes to
determine the religious and cultural significance of historic properties to them per 36 CFR 800.4(c)(1),
and 36 CFR 800.5(a) requires that agencies apply the criteria of adverse effect in consultation with Indian
tribes. Therefore, in assessing how a proposed undertaking might affect historic properties of religious
and cultural significance to Indian tribes located off tribal lands, federal agencies need to consider the
views of Indian tribes.
b) On Tribal Lands
On tribal lands, the agency consults with the THPO (or the designated tribal representative and the SHPO
if the tribe has not assumed THPO duties)—and with any other Indian tribe that attaches religious and
cultural significance to identified historic properties within the APE—in applying the criteria of adverse
effect to historic properties, as is required by 36 CFR 800.5(a).
2) When proposing a finding of “no adverse effect,” does the federal agency consult with Indian
tribes?
a) Off Tribal Lands
No, the agency consults with the SHPO in proposing a finding of “no adverse effect,” but notifies
consulting parties such as Indian tribes, and provides them with documentation supporting that finding.
The agency is encouraged, but not required, to seek the concurrence of Indian tribes that attach religious
and cultural significance to the historic property subject to the finding.
b) On Tribal Lands
The agency consults with the THPO (or designated tribal official and the SHPO if the tribe has not
assumed THPO duties) in proposing a finding of “no adverse effect,” and provides other consulting
parties with documentation supporting that finding, as described above.
3) What happens if an Indian tribe disagrees with a finding of “no adverse effect”?
a) Off Tribal Lands
If a consulting Indian tribe disagrees with a proposed agency finding of “no adverse effect,” it must
specify the reasons for its objection in writing within 30 days of receipt of the agency’s issuance of the
proposed finding. Once a timely written objection is received, the agency must either consult with the
objecting tribe to resolve the disagreement or request ACHP review of the “no adverse effect” finding,
per 36 CFR 800.5(c)(2)(i). The agency must concurrently notify all other consulting parties that it has
requested ACHP review of the finding.
Consulting Indian tribes can make a direct request to the ACHP to review the finding, specifying, in
writing and within the 30 day review period, the reasons for its objection, per 36 CFR 800.5(c)(2)(iii).
After review of the objection, the ACHP may provide its opinion to the agency official, and, if the ACHP
determines the issue warrants it, to the head of the agency. The regulations stipulate that if the ACHP
objects to a finding on its own initiative, it must do so within 30 days of receipt of the agency’s issuance
of that finding.
b) On Tribal Lands
If the THPO (or designated tribal official if the tribe has not assumed THPO duties) disagrees with a
finding of “no adverse effect” within the 30 day review period, the THPO notifies the agency in writing
that it disagrees and specifies the reasons for the disagreement like any other consulting party. Once a
timely written objection is received, the agency must either consult with the THPO to resolve the
disagreement or request ACHP review of the “no adverse effect” finding. The agency must concurrently
notify all other consulting parties that it has requested ACHP review of the finding.
Consulting parties have the same rights to disagree with a “no adverse effect” finding on tribal lands as
they do off tribal lands. Should another Indian tribe that is a consulting party (i.e., a tribe who attaches
religious and cultural significance to a historic property located on another tribe’s lands) object to a
finding of “no adverse effect,” that tribe may, just as in the case for non-tribal lands (above), file a written
objection with the federal agency within the 30 day review period. Again, once a timely written objection
is received from any consulting party, the agency must either consult with the objecting Indian tribe to
resolve the disagreement or request ACHP review of the “no adverse effect” finding, per 36 CFR
800.5(c)(2)(i). The agency must concurrently notify all other consulting parties that it has requested
ACHP review of the finding.
Just as is the case off tribal lands, consulting Indian tribes can also make a direct request to the ACHP to
review the finding, specifying, in writing and within the 30 day review period, the reasons for its
objection, per 36 CFR 800.5(c)(2)(iii).
Regardless of whether the THPO (or designated tribal official) or a consulting party makes the objection
to the agency finding, the ACHP’s response is the same: after review of the finding, the ACHP may
provide its opinion to the agency official, and, if the ACHP determines the issue warrants it, to the head of
the agency. The regulations stipulate that if the ACHP objects to a finding on its own initiative, it must
do so within 30 days of receipt of the agency’s issuance of that finding.
D. Resolution of Adverse Effects
1) Which parties does the federal agency consult with to develop and evaluate alternatives or
modifications to the undertakings to avoid, minimize, or mitigate adverse effects?
a) Off Tribal Lands
The agency consults with the SHPO, Indian tribes, and other consulting parties at this phase of the
Section 106 process. The agency must provide project documentation to all consulting parties and invite
the ACHP into consultation. Any consulting party may request ACHP participation in consultation to
facilitate the resolution of adverse effects.
In fact, the Section 106 regulations at 36 CFR Section 800.2(b) stipulate that the ACHP may enter into
the consultation at any point in the Section 106 process without invitation when it determines that its
involvement is necessary to ensure that the purposes of Section 106 are met. As specified in Appendix A
to 36 CFR Part 800, the ACHP may elect to enter the consultation if, among other things, an undertaking
presents issues of concern to Indian tribes.
b) On Tribal Lands
On tribal lands, the process and requirements are the same as for proposed undertakings off tribal lands,
except that agency consults with the THPO (or designated tribal official and SHPO if the tribe has not
assumed THPO duties), and other consulting parties. Again, the agency should continue to be cognizant
of any confidentiality issues—see the discussion of confidentiality at Section V(B)(4) of this handbook.
2) What happens if agreement is reached on how to resolve adverse effects?
a) Off Tribal Lands
If agreement is reached, the agency, SHPO and consulting parties, including Indian tribes, develop a
Section 106 memorandum of agreement (MOA) or programmatic agreement (PA) outlining how the
adverse effects will be addressed
b) On Tribal Lands
The agency and the THPO (or designated tribal official and the SHPO, if the Indian tribe has not assumed
THPO duties) and consulting parties develop an MOA or a PA outlining how the adverse effects will be
addressed (the decision to prepare a PA requires the agency to invite the ACHP to participate). The
THPO/tribe is a signatory to the MOA or PA. 36 CFR 800.2(c)(2)(ii)(F) provides that an Indian tribe that
has not assumed THPO duties may notify the agency in writing that it is waiving its rights to execute an
MOA for undertakings on its tribal lands.
3) Is the federal agency obligated to invite an Indian tribe to be a signatory or a concurring party to
an MOA or PA?
a) Off Tribal Lands
No, the agency may, but is not required to, invite an Indian tribe to become a signatory or concurring
party when the undertaking or affected historic properties are not on tribal lands. An invited signatory to
an MOA or PA possesses the same rights with regard to seeking amendments to or terminating the
agreement as all other signatories, which include the agency official, the SHPO, and the ACHP, if
participating. Those that sign as a concurring party do not have such rights to amend or terminate the
MOA or PA. Refusal by an Indian tribe to become an invited signatory or concurring party to an MOA or
PA for an undertaking off tribal lands, however, does not invalidate it. Certainly, agencies are encouraged
to invite Indian tribes that attach religious and cultural significance to affected historic properties to sign
the agreement. If an Indian tribe is assuming review or other responsibilities under the MOA or PA, the
agency should consider inviting the tribe to become a signatory.
b) On Tribal Lands
MOAs and PAs for undertakings on tribal lands include the THPO (or the designated tribal official if the
tribe has not assumed THPO duties) as a signatory, with all the rights to seek amendments to or terminate
the agreement. The agency and the signatories may invite other consulting parties to be signatories or sign
as concurring parties.
4) What happens if agreement is not reached on how to resolve adverse effects?
a) Off Tribal Lands
If agreement is not reached, the agency, the SHPO, or the ACHP (if participating), may terminate
consultation. Other consulting parties, including Indian tribes, may decline to participate, but they cannot
terminate consultation. After consultation is terminated, the ACHP prepares its formal comments to the
head of the agency, who must consider the ACHP’s comments in reaching a final decision. Per the
Section 106 regulations at 36 CFR Section 800.7 (c), the ACHP must provide an opportunity for the
agency, all consulting parties, and the public to provide their views to the ACHP during the time in which
the comments are being developed. When the ACHP issues comments, it means the full ACHP
membership issues the comments, not the ACHP staff. In addition to providing the comments to the head
of the agency, the ACHP shall provide copies of those comments to each of the consulting parties. Once
the head of the agency has received the ACHP’s comments, he or she is required to prepare a summary of
his or her final decision regarding the proposed federal undertaking that contains both the rationale for its
decision as well as evidence that it had considered the ACHP’s comments when making that decision. In
addition, the agency must provide copies of this summary to all consulting parties.
b) On Tribal Lands
If the agency and the THPO (or designated tribal official, if the tribe has not assumed THPO duties) fail
to agree, the agency must invite the ACHP to join the consultation.
The THPO/tribe may determine that further consultation will not be productive and terminate
consultation. The THPO/tribe must then notify the agency and other consulting parties of the
determination and the reasons for terminating. The ACHP must then issue its comments to the head of the
agency when the THPO/tribe terminates consultation because the federal agency and the ACHP cannot
execute an agreement without the THPO/tribe for undertakings on or affecting historic properties on tribal
lands. The procedure for the development of the ACHP’s comments and the requirements to provide
copies of both ACHP comments and the agency’s summary of its final decision to consulting parties is
identical to that explained in answer A) (above) for undertakings affecting historic properties off tribal
lands.
5) When an undertaking takes place or affects historic properties on tribal lands, can a Section 106
agreement be concluded between the federal agency and the Indian tribe when the SHPO opts out
of consultation, even though the designated tribal representative is not a THPO?
Yes, an agreement can be concluded in this circumstance because an Indian tribe has the same rights as a
THPO, per 36 CFR 800.2(c)(2)(i)(B). An Indian tribe may reach agreement with a federal agency on the
terms of a Section 106 agreement (MOA or PA). Execution of the agreement by a designated tribal
representative and the agency (along with filing the agreement with the ACHP), and agency compliance
with the terms of the agreement, would complete the Section 106 process.
VI. Consultation Tools and Strategies
The ACHP has developed a number of resources to assist federal agencies, applicants, Indian tribes and
NHOs to navigate the Section 106 process and its consultation requirements. These can be found at the
ACHPs webpage for Indian tribe and Native Hawaiians.
Through the ACHP’s administration of the Section 106 process over many years, it has become apparent
that the keys to the most successful outcomes include relationship building, collaboration, and
partnership. These themes are woven throughout the ACHP’s tribal and Native Hawaiian consultation
guidance and information papers. In each of these documents, there are specific recommendations for
improving tribal and NHO consultation.
Recommendations for Improving Tribal-Federal Consultation
Improving Tribal Consultation in Infrastructure Projects
Early Coordination with Indian Tribes for Infrastructure Projects, a free online, on-demand course can
be taken through the ACHP e-Learning portal.
Early Coordination with Indian Tribes During Pre-application Processes: A Handbook
VII. Principles and Tips for Successful Consultation
The key to success in any consultation relationship is building trust, having common goals, and remaining
flexible. There is no “one size fits all” model for consultation with Indian tribes—all Indian tribes are
unique, and different undertakings present different challenges. There are, however, central principles that
should be kept in mind when conducting tribal consultation and this final section provides tips on how to
put them into practice.
Respect is Essential
• Be respectful of tribal sovereignty.
• Become aware of tribal conventions and protocols and follow them; respect tribal customs.
• Do not take photographs without obtaining permission first.
• Behavior you may perceive as normal may be insulting or offensive to others. For example, some
Indian tribes consider pointing one’s finger to be offensive, and consider a gentle handshake a
sign of respect instead of a sign of weakness. Consider that your partners may have different
perspectives and values. When in doubt, ask respectfully.
• Tribal leaders have many duties; be aware of this fact and do not demand that everyone adhere to
your deadline. Instead, explain why your deadline exists, who set it, and why it is important.
Above all, strive to be as flexible as possible. Look for ways to work cooperatively, because this
is your undertaking and consultation is your responsibility.
• Be sensitive to time and costs. An Indian tribe may not have adequate human and financial
resources that allow its representatives to respond quickly or travel to meetings. Make an effort to
facilitate and support consultation within available agency resources.
• Do not voice your opinion on what is best for the tribe; that is for tribal leaders to determine.
• Be mindful of the significance of history. The history of U.S. government relations with Indian
tribes may color current perceptions and attitudes and cause distrust or suspicion. Take the time to
learn about the unique history of the Indian tribe you are consulting with.
• Do not create expectations or make commitments that you or your agency are unable or unwilling
to fulfill. Before entering into consultation, be certain that what you are negotiating is supported
by the Office of General Counsel or Solicitor of your agency, and anyone else who will need to
review and approve your position.
Communication is Key
• Communicate with tribal representatives directly whenever possible—do not rely solely on
letters. Follow up written correspondence by phone or in person. Create documentation of your
communications, such as notes on the content of discussions, keep phone logs, etc.
• Develop an understanding of the tribe’s decision-making process and get to know its decision
makers. Understand that tribal officials may need time to consult with others, including elders,
the tribal council or the head of the tribal government. Make sure you understand the timelines
for tribal decision-making.
• Do not assume silence means concurrence; it could signal disagreement. Always verify views
with the official tribal representative.
• Always ask tribal representatives about their preferred way of doing business and any specific
tribal protocols for meetings. Be aware that the cultural norms of tribal citizens may be different
from yours, and that each of the more than 570 Indian tribes has a unique culture and heritage.
• Do not assume everyone in the Indian tribe has the same views. For example, traditional cultural
authorities may sometimes have perspectives that differ from those of their tribal governments. It
is important to listen to all consultation participants, but also to be sure that you understand the
position of the elected tribal leadership on every issue.
• Develop points of contact through the tribal government. Do research ahead of time to find out
whom you will be consulting with and their tribal positions, then make the effort to get to know
them. Tribal governments may consist of elected leadership (tribal leader, tribal council, tribal
courts), traditional leaders (treaty councils, tribal elders, spiritual leaders), and tribal
administration (program managers, administrators, and staff).
• Be mindful of appropriate behaviors—be sure to demonstrate respect to tribal leaders just as you
would to a leader of a foreign nation. Always show deference toward tribal elders and allow them
plenty of time to speak first. Do not interrupt or raise your voice. Learn by observation and by
talking to others. Again, when in doubt, ask respectfully.
• Remember that consent by one tribal member does not necessarily mean consent by the tribe.
Make sure the tribe’s governing body has approved final decisions.
Consultation: Early and Often
• Make sure you identify and initiate consultation with Indian tribes at the start of the planning
process for your agency’s undertaking.
• Suggest a process for consultation and discuss it with the Indian tribes. Collaborate in a way that
accommodates tribal protocols and schedules. The ACHP regulations at 36 CFR Section
800.2(c)(2)(ii)(E) provide for agreements with Indian tribes that set out procedures for Section
106 consultation and can address tribal concerns about confidentiality of information. The ACHP
published Types of Agreement Documents in Section 106: What They Are and When They Should
Be Used for more information about agreements.
• Consider establishing an on-going working group that can provide continuity for future
undertakings by your agency.
• If at all possible, approach consultation as a partnership rather than on project-by-project
coordination.
• Remember to document all correspondence, follow-up telephone calls, consultation meetings and
visits to project sites and reservations. Be sure to include the content of your communications in
your documentation.
• Find out if the tribal leadership wants to receive additional copies of all the consultation materials
and documentation that you are providing to the tribe’s designated representative (THPO, or
cultural resources staff person) as part of your consultation.
• Ask tribal representatives to keep you up-to-date on any changes to tribal postal or email
addresses and contact information for new tribal leadership.
Effective Meetings are a Primary Component of Successful Consultation
• Offer to go on-site with traditional authorities. Some people may be uncomfortable relying solely
on maps, and site visits may stimulate consideration of alternatives.
• Do not set your own meeting agenda without consulting with tribal representatives to learn what
they expect the process and substance to be. Indian tribes may have their own ways of conducting
meetings.
• Inform tribal representatives in advance of the meeting’s goal and what needs to be accomplished
in the time you have, so that participants can stay focused. Like you, tribal representatives are
there to work and accomplish results.
• Give plenty of notice beforehand so that tribal representatives have adequate time to prepare.
Provide participants with maps, hotel information, a list of all attendees, an agenda, and most
importantly, complete project documentation.
• Speak to tribal members by phone beforehand so that you know who will be attending the
meeting. Allow Indian tribes to send as many representatives as they wish, but explain any
limitations that your agency may have with funding travel.
• Check if anyone has special needs. Some tribal elders may need special accommodations.
• Offer the tribal participants the opportunity to make an opening or welcoming statement.
• Make sure you invite tribal representatives to sit at the table with you, and introduce all
participants with their proper titles. Check with your tribal contact beforehand so you know if
certain officials or elders should be introduced and acknowledged first.
• Review your agency’s mission and operations at the start of the meeting. Do not assume that
everyone knows how your agency functions or is familiar with all of the programs it oversees.
• Take accurate notes during the meeting, or, if the tribe agrees in advance, arrange for meetings
to be recorded (it is still advisable to take notes to avoid problems should a recording be lost or
damaged). It is important to document not only that you have consulted with the tribe, but the
substance of the meeting and the views and concerns expressed by the tribe, as well. Be sensitive
to the issue of confidentiality, which may require that you switch the recorder off, or to omit
certain sensitive information from your notes if the tribe so requests. Documenting meeting
content ensures that participants can later review and correct any inaccuracies, and also provides
the agency with a solid consultation record.
• Be prepared on the issues and be open to tribal perspectives.
Conclusion
We hope this handbook has been helpful. If needed, you may obtain further assistance from the ACHP in
understanding and interpreting the requirements of Section 106, including tribal consultation.
The ACHP’s Office of Federal Agency Programs (OFAP) administers the NHPA Section 106 review
process, and works with federal agencies to improve how they incorporate historic preservation values
into their programs. OFAP provides technical assistance, training, and guidance for Section 106 users to
improve the efficiency and effectiveness of the review process.
This office’s core responsibilities include:
• managing the ACHP’s participation in Section 106 consultation
• providing guidance, advice, and technical assistance to federal agencies and other participants in
the Section 106 process
• overseeing the Section 106 training program to develop training tailored to specific programs or
issues
The ACHP’s Office of Native American Affairs (ONAA) oversees the ACHP’s Native American
initiatives. ONAA staff also works closely with the ACHP’s tribal/Native Hawaiian member to address
critical issues brought to the ACHP by Indian tribes, NHOs, and intertribal organizations.
The program's primary responsibilities are:
• Advising the ACHP Chairman, members, executive director, and staff on policy matters and
historic preservation issues affecting Indian tribes and Native Hawaiian organizations (NHO's)
• Ensuring the ACHP meets its government-to-government and trust obligations to Indian tribes
• Providing technical assistance and outreach regarding tribal and NHO consultation in the Section
106 process
• Participating in inter-agency initiatives focused on tribal and Native Hawaiian issues
For general information, please visit the ACHP website.
ADVISORY COUNCIL ON HISTORIC PRESERVATION
401 F Street NW, Suite 308 | Washington, DC 20001
[email protected] | www.achp.gov
